Analyzing Legal and Policy Developments Affecting Endangered Species Throughout the United States

As the U.S. Supreme Court prepares for its upcoming October 2018 term, one petition concerning an endangered sea otter relocation program is attracting a lot of attention as a potential vehicle for the Court to consider the broader issue of Chevron deference, the legal doctrine that requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute. The petition has also created odd bedfellows, as the Department of Justice under the Trump Administration finds itself arguing alongside several national environmental non-profit organizations that the Court should not grant the petition.

The petition in question is California Sea Urchin Commission v. Combs, Docket No. 17-1636, which involves an appeal of a Ninth Circuit ruling that affirmed a 2012 decision by the U.S. Fish and Wildlife Service (Service) to shut down its endangered sea otter translocation program. Under that program, the Service had established management zones surrounding certain sea otter populations wherein fishermen who incidentally harmed sea otters would be exempt from liability under the Endangered Species Act and the Marine Mammal Protection Act. After the Service shut down the program, a California state commission and several fishing industry groups sued the Service. The Ninth Circuit upheld the Service’s decision under the Chevron doctrine, finding that the agency’s interpretation of the underlying statute was reasonable.

The fishing industry groups have focused on the underlying Chevron question in their petition for a writ of certiorari, presenting the issue to the Court as: “[i]f a statute neither authorizes nor forbids an agency action, does that statutory silence trigger Chevron deference?” In comparison, the government and the environmental non-profits have tried in their recently filed opposition briefs to reframe the issue away from a broader Chevron question and focused more on the Service’s actions as consistent with its authority under the statutes.

We will continue to track this case as the Supreme Court decides whether or not to grant the petition. Be sure to check back with us for further updates on whether the Court decides to take the case.

On September 4, 2018, the Center for Biological Diversity filed a lawsuit under the federal Freedom of Information Act against the U.S. Fish and Wildlife Service (Service). The lawsuit alleges that the Service has used irresponsible scientific methods while conducting its review of the endangered status for the American burying beetle (Nicrophorus americanus) pursuant to the Endangered Species Act (ESA). The lawsuit was triggered, in part, by a letter to the Service authored by one of the scientists who initially participated in the Service’s risk assessment for the beetle which raised concerns about the methods being used by the Service.

The Service initiated a status review of the species, which was listed as endangered in 1989 and occupies habitat in four states, in 2016. The Service has since been under pressure to make a decision regarding whether or not to remove the beetle from the List of Endangered and Threatened Species. A risk assessment for the beetle is part of the Service’s attempt to address a still-outstanding 12-month finding.

At least one scientist who previously worked on the risk assessment alleges that the Service engaged in questionable methods, was opaque or even facetious about the data underlying its conclusions, and imposed unreasonable timelines. In a letter to the Service, he alleges repeatedly requesting documents, and that these requests were repeatedly denied. Following publication of his letter, the Center for Biological Diversity filed a Freedom of Information Act request with the Service seeking information about the Service’s evaluation of the beetle’s status. The Center for Biological Diversity’s lawsuit alleges that the Service failed to release detailed records related to the request, including a number of records in the Service’s possession, which the Center for Biological Diversity separately obtained from third parties. If the lawsuit succeeds, it could force the Service to turn over a number of documents related to its review of the burying beetle’s status which, to date, have not been made public. It should be noted, however, that the status review of the species is incomplete, and both a 12-month finding and a five-year status review are pending. As such, allegations by the Center for Biological Diversity that the methods employed by the Service in conducting the status review are flawed may be prejudging the outcome, since the process is not yet completed.

On August 23, 2018, the California Fish and Game Commission (“Commission”) listed the Humboldt marten (Marten caurina humboldtensis) as an endangered species under the California Endangered Species Act (“CESA”). The Commission also ratified its decision to list the Lassics lupine flower (Lupinus constancei) as an endangered plant under CESA.

Members of the weasel family, Humboldt martens were previously designated as a California Species of Special Concern and are currently under review for listing under the federal Endangered Species Act. Over the last quarter century, Humboldt martens have been detected only in northern Humboldt County and extreme western Siskiyou County. According to the California Department of Fish and Wildlife, the California population of Humboldt martens is estimated to number fewer than 200 individuals.

Lassics lupine is an herbaceous perennial plant of the legume family, found near the summits of the Lassics mountains in Humboldt and Trinity counties within the Six Rivers National Forest.

The Commission’s proceeding documents and a video of the proceedings are available here.

On August 10, 2018, the representative from Indiana’s 4th Congressional District introduced a bill entitled: “To amend the Endangered Species Act of 1973 to remove freshwater mussels from the list of endangered and threatened species.” While the text of the bill isn’t yet available, based on the title of the bill one can reasonably surmise that the author of the bill believes that freshwater mussels are not deserving of Endangered Species Act protection. Further, this interpretation is supported by recent articles detailing the representative’s long-running opposition to freshwater mussel protection. For example, one recent article implies that the bill’s author believes that prior actions taken under the Endangered Species Act have damaged the community he represents, and that when weighing the interests of his community against freshwater mussels, the scales tip decidedly against Endangered Species Act protection for freshwater mussels. (See, e.g., Greenwire Story entitled “House Republican bill would strip protection for mussels” dated August 13, 2018.) While bills like this often fail to make it to a full floor vote, stay tuned as we will continue to follow the bill’s progression or lack thereof.

This week, the media has reported two changes in key roles at the Department of the Interior (“DOI”) and U.S. Fish and Wildlife Service (“USFWS”). Greg Sheehan has reportedly left his role as Principal Deputy Director of USFWS. Sheehan had held the role since appointed by DOI Secretary Zinke in June 2017. As the Trump administration has not yet filled the role of Director of the USFWS, Sheehan had been the top official within USFWS. Sheehan is expected to leave his role next week.

The media also reported this week that Andrea Travnicek has been named as Acting Assistant Secretary for Fish, Wildlife, and Parks, overseeing USFWS and the National Park Service. Prior to this new role, Travnicek had been serving as Principal Deputy Assistant Secretary for Water and Science for DOI. She replaces Trump appointee Susan Combs, who will now serve as Acting Assistant Secretary for Policy, Management, and Budget. Combs had been serving as Acting Assistant Secretary for Fish, Wildlife, and Parks since late March while awaiting confirmation of her role as Assistant Secretary for Policy, Management, and Budget.

In recent weeks, the Trump Administration and Congress have proposed changes to the Endangered Species Act (“ESA”) and its implementing regulations. Lawmakers from the Congressional Western Caucus introduced nine bills that would, according to the 15 legislators that introduced the bills, amend and modernize the ESA. The lawmakers assert that the bills would also incentivize voluntary conservation efforts, let states enter into “cooperative agreements” for recovery, and prioritize data from local communities in making scientific decisions about conservation.

The bills include H.R. 6346, introduced by Rep. Mike Johnson (R-LA), which would require federal agencies to consider current and proposed conservation measures elsewhere when analyzing a project that may jeopardize the continued existence of an endangered or threatened species.

The legislative package, which was introduced between July 12 and July 20, 2018, would accomplish numerous longstanding Republican goals for amending the ESA, including making it easier for the government to remove species from the list of endangered or threatened species and preventing non-governmental organizations from suing to try to obtain ESA protection for species.

As we reported here, the package comes less than two weeks after Sen. John Barrasso (R-Wyo.), chairman of the Senate Environment and Public Works Committee, introduced a comprehensive measure also intended to overhaul the ESA.

In addition, on July 19, 2018, the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (together, the “Services”) proposed revisions to the regulations that implement portions of the ESA. Key aspects of the Services’ proposal involve changes to section 4 and section 7 of the ESA, as set forth below. Revisions to the “blanket 4(d) rule” are proposed only by FWS, while revisions to the processes governing listing, delisting, and designation of critical habitat, and interagency consultation are proposed jointly by the Services.

Section 7—Consultation

Procedures for an “alternative” consultation mechanism, which includes programmatic consultations.

New procedures regarding incidental take permits intended to streamline the Services’ development of biological opinions.

Procedures that allow for “expedited consultation” where actions have minimal adverse or predictable effects, based on the Services’ experience in previous consultations.

Section 4—Listing, delisting, and designation of critical habitat

Codifying the definition of “foreseeable future” with respect to listing decisions, such that it extends only so far as the Services can reasonably determine that conditions posing danger of extinction are probable.

Codifying the fact that standards for listing and delisting are the same. Specifically, the Services propose to clarify that the standard for removing a species from the list of threatened and endangered species is not heightened.

Removing “listing in error” from the reasons the Services may delist a species.

With respect to critical habitat, clarifying that the Services will only designate unoccupied areas as critical habitat when occupied areas are inadequate to ensure recovery, or under certain other circumstances, such as where including unoccupied habitat would minimize societal conflict.

Section 4(d)—Blanket prohibition on “take”

Rescission of the blanket section 4(d) rule. This change will not apply retroactively. Species already listed as threatened will continue to be subject to the existing blanket prohibition on take.

FWS seeks specific feedback concerning whether FWS should include binding language in its final regulations that would require FWS to propose a special 4(d) rule concurrent with listing a species as threatened. FWS also seeks feedback regarding whether it should establish a timeframe in which FWS must finalize any such special rule after a listing or reclassification.

The proposed rules, available at the links below, will be published in the Federal Register on July 25, 2018. The Services have indicated that they will receive public comments regarding the proposed rules through September 24, 2018.

The Klamath River Renewal Corporation (the “corporation”) recently submitted a plan for the removal of four dams on the lower Klamath River to the Federal Energy Regulation Commission (FERC). In it, the corporation indicates its intent to sidestep compliance with the California Endangered Species Act and California’s Lake and Streambed Alteration Program by asking FERC to opine that those state law requirements are preempted by federal law. Among other things, these laws protect the critically endangered Lost River sucker (Deltistes luxatus) and shortnose sucker (Chasmistes brevirostris).

At the same time, as we previously reported, there is a bill (Assembly Bill 2640) moving through the California legislature to waive the protections afforded to the Lost River sucker and shortnose sucker by the fully protected species laws. Because the federal and state agencies entrusted to administer laws to protect the sucker species are vocal proponents for dam removal, those traditional advocates for endangered species may be unlikely to provide an honest appraisal of the harmful effects of dam removal. As a consequence, all eyes will be on FERC to determine whether it will demand an honest appraisal and instruct the corporation to comply with state law requirements.

The U.S. District Court for the District of New Mexico granted New Mexico’s motion for summary judgment in a case brought by the Humane Society seeking to invalidate State trapping regulations related to cougars (Puma concolor). Plaintiffs argued that the regulations, which amended existing regulations that authorize trapping of cougars, violate the Endangered Species Act’s prohibition on take of protected species. Plaintiffs reasoned that the amended regulations would inevitably cause the take of listed Mexican wolves (Canis lupus baileyi) since cougars and wolves co-occur. But the Court rejected the challenge, affirming that the cougar trapping regulations are lawful.

The court noted that the challenged regulations have been in effect for two full trapping seasons, and there is not a single record that a Mexican wolf has ever been caught in a trap set for cougars in New Mexico. The court then explained that “the fact that no wolf has been caught in a cougar trap since the Cougar Rule has been in effect is strong evidence, even if it is not dispositive, that the rule is not causing take of the Mexican gray wolf, by any definition of the word ‘take’ under the ESA statute.”

On July 9, 2018, President Trump nominated Judge Brett Kavanaugh, who currently sits on the U.S. Court of Appeals for the District of Columbia Circuit, to replace retiring Associate Justice Anthony Kennedy on the U.S. Supreme Court. While much of the public discourse about Judge Kavanaugh’s nomination has focused on hot-button issues like abortion and the Second Amendment, the addition of Justice Kavanaugh to the Supreme Court could also have significant effects on a range of environmental laws and regulations, including the Endangered Species Act (“ESA”).

One of Judge Kavanaugh’s most well-known environmental opinions is from Otay Mesa Property, L.P. v. Interior, 646 F.3d 914 (D.C. Cir. 2011). In Otay Mesa, the U.S. Fish and Wildlife Service (“Service”) had observed four endangered San Diego fairy shrimp (Branchinecta sandiegonensis) in one location on a dirt road on the plaintiffs’ 143-acre property. Based on that single observation, the Service designated the plaintiffs’ property as “occupied” habitat for purposes of its critical habitat designation under the ESA. The D.C. Circuit held that substantial evidence did not support the Service’s designation of critical habitat for the San Diego fairy shrimp. Judge Kavanaugh explained that while the Service may protect areas outside of the geographic range occupied by an ESA-protected species as essential to the species’ conservation, it had instead asserted that this was occupied habitat for the fairy shrimp. Judge Kavanaugh found that a single observation of a species did not provide sufficient evidence that the area was “occupied” habitat. And while the Service was under no requirement to continue looking for the endangered shrimp, Judge Kavanaugh noted that the lack of such an obligation “is not the same as an authorization to act without data to support its conclusions.” 646 F.3d at 918. This opinion suggests that Judge Kavanaugh is likely to narrowly interpret the provisions of the ESA.

Similarly, Justice Kavanaugh’s position on Chevron deference may have wide ranging consequences for environmental statutes, including the ESA. Continue Reading

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Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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